District Judge of the Eastern District of Louisiana, sitting by designation. *

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10890

CITY OF DALLAS, TEXAS

Plaintiff-Appellant

v.

H. DALE HALL, ET AL.

Defendant-Appellee

and

TEXAS WATER DEVELOPMENT BOARD

Plaintiff-Appellant

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL

Defendants-Appellees

Appeal from the United States United States District Court 

for the Northern District of Texas

Before SMITH and SOUTHWICK, Circuit Judges, and ENGELHARDT, District

Judge.

*

United States Court of Appeals

Fifth Circuit

F I L E D

March 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-10890

2

KURT D. ENGELHARDT, District Judge:

After preparing an Environmental Assessment (“EA”) of the proposed

Neches Wildlife Refuge in East Texas, the U.S. Fish & Wildlife Service (“FWS”)

announced its Finding of No Significant Impact (“FONSI”), obviating the need

to prepare an Environmental Impact Statement (“EIS”). FWS then set an

acquisition boundary for the refuge and accepted a conservation easement within

that boundary. These actions precluded a reservoir the City of Dallas (“City”)

and the Texas Water Development Board (“TWDB”) had proposed for the same

site. The City and TWDB sued in federal district court claiming that the EA that

FWS prepared was flawed, that under the National Environmental Policy Act

(“NEPA”) the agency was required to prepare an EIS, and that the

establishment of the refuge violated the Tenth Amendment. The district court

dismissed several of the Appellants’ claims and granted FWS’ motion for

summary judgment on others. We AFFIRM.

I. BACKGROUND

In 1961, the State of Texas first identified a site along the Upper Neches

River in Anderson and Cherokee Counties as a potential reservoir to serve the

growing Dallas/Ft. Worth Metroplex. Dubbed the Fastrill Reservoir, the site was

again included in a state water agency resources plan in 1984, and in the 1997

and 2001 regional water plans issued by TWDB. The City and TWDB’s plan

envisioned constructing the reservoir in 2050 and tapping it in 2060. There is

nothing in the record prior to 2005 that indicates that the City or TWDB took

any steps to develop the site beyond including it–among other possible reservoir

sites–in regularly updated planning documents.

In 1985, FWS identified the same site as a possible wildlife refuge, since

its native bottomland hardwood forest and wetlands provide an important

wintering habitat for migrating waterfowl. That year, FWS listed the site as

high-priority for protection. FWS approved a preliminary refuge proposal in 1988
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3

and prepared a draft EA, but put the project aside for lack of funding. The

project was revived in 2003 and the agency initiated public comment in June

2004. Public workshops were held in July 2004 and FWS made a presentation

to the regional water planning group in October of that year. Another EA was

prepared, which listed three alternatives: no action, the recommended 25,281-

acre configuration, and a narrower 15,294-acre configuration. The EA referenced

the reservoir proposal and noted that both the larger and smaller refuge

configurations would prevent the reservoir from being built. The EA was

distributed to public officials and interested groups, open meetings were held in

May 2005, and it was open for public review and comment for two weeks that

same month. More than 1,600 comments were received, but the EA was not

revised, and a “final” EA was not issued. On July 28, 2005, FWS concluded that

an EIS was unnecessary and prepared a FONSI.

By early 2005, the City was aware that FWS had revived the refuge

proposal. On March 9, 2005, the Dallas City Council passed a resolution

expressing a desire to work with FWS on a plan that would allow the reservoir

and the refuge to coexist and authorizing a feasibility study. On August 16th,

the Texas legislature designated the Fastrill Reservoir as a “critical resource,”

and the January 2006 regional water plan recommended building the reservoir

as part of its water management strategy. Meetings were also held between the

director of FWS and City representatives to discuss alternative sites for the

refuge, and state and FWS representatives continued to communicate through

the first half of 2006 about alternative plans that would allow a refuge and a

reservoir to coexist. The City and TWDB scheduled–though did not actually

begin–a series of engineering and environmental studies. By June 11, 2006, the

day FWS designated an “acquisition boundary” for the refuge encompassing the

larger 25,281-acre site, the feasibility study was not completed nor had

Appellants taken any concrete steps toward planning the reservoir, such as
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4

applying for permits. Accompanying the designation was a Conceptual

Management Plan outlining how land within the boundary would be acquired.

The Neches Wildlife Refuge was set to come into existence when FWS, by

purchase or donation, took title to or an interest in property within the

acquisition boundary. On August 23, 2006, FWS accepted a one-acre

conservation easement from a landowner within the acquisition boundary.

TWDB and the City filed the instant suits on January 10, 2007, arguing

inter alia that the EA was flawed, that FWS should have prepared an EIS, and

that the refuge violated the Tenth Amendment. On October 24, 2007, the district

court dismissed five of the City’s claims, including the constitutional claim, and

two of TWDB’s claims, under Rule 12(b)(6). The parties filed cross-motions for

partial summary judgment on the NEPA claims, and on June 30, 2008, the

district court denied the Appellants’ motions and granted FWS’s motion. Relying

heavily on Sabine River Auth. v. U.S. Dep’t of the Interior, 951 F.2d 669 (5th Cir.

1992), the district court held that an EIS was not required because the

establishment of the acquisition boundary did not cause any change in the

physical environment. The court concluded that the refuge’s effect on the City’s

water supply was speculative and not within the scope of NEPA. The court also

found that the EA considered a reasonable range of alternatives and evaluated

the necessary information. The City and TWDB moved for an injunction pending

appeal and for entry of final judgment, which were granted on July 28, 2008. The

parties subsequently filed a joint motion to amend the judgment, which was

granted on September 4, 2008. Notice of appeal was filed on September 8, 2008,

and the appeal was expedited on September 22, 2008. 

II. DISCUSSION

A. Standard of Review

We review the district court’s grant of summary judgment de novo.

Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
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5

The court may only set aside an agency’s decision not to prepare an EIS where

a plaintiff establishes that the decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see

also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-76 (1989); Kleppe v.

Sierra Club, 427 U.S. 390, 412 (1976). Under this highly deferential standard of

review, a reviewing court has the least latitude in finding grounds for reversal.

Sabine River, 951 F.2d at 678. Courts may not use review of an agency’s

environmental analysis as a guise for second-guessing substantive decisions

committed to the discretion of the agency. But “[i]n conducting our NEPA

inquiry, we must ‘make a searching and careful inquiry into the facts and review

whether the decision . . . was based on consideration of the relevant factors and

whether there has been a clear error of judgment.’” Marsh, 490 U.S. at 378

(citation omitted).

We review de novo a district court’s dismissal pursuant to Rule 12(b)(6).

Ballard v. Wall, 413 F.3d 510, 514 (5th Cir. 2005). “All of the plaintiff’s

allegations must be accepted as true, and the dismissal will be affirmed only if

it appears that no relief could be granted under any set of facts that could be

proven consistent with the allegations.” Id. at 514-15 (internal quotation

omitted). However, “conclusory allegations or legal conclusions masquerading

as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v.

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation omitted).

B. Sufficiency of the Environmental Assessment

NEPA does not require federal agencies to favor an environmentally

preferable course of action, but rather requires that they take a “hard look at

environmental consequences.” Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 350 (1989) (quoting Kleppe, 427 U.S. at 410 n.21). The statute requires

“all agencies of the Federal Government . . . [to] include [an EIS] in every

recommendation or report on proposals for . . . major Federal actions
No. 08-10890

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significantly affecting the quality of the human environment.” 42 U.S.C. §

4332(2). An EIS is not necessary when the federal action is not major or does

not have a “significant impact on the environment.” Sabine River, 951 F.2d at

677. To determine whether an EIS is necessary, an agency will perform an EA.

Sierra Club v. Espy, 38 F.3d 792, 802 (5th Cir. 1994); 40 C.F.R. § 1508.9(a)(1)

(defining an EA as a “concise public document” that “[b]riefly provide[s]

sufficient evidence and analysis for determining whether to prepare an

environmental impact statement or a finding of no significant impact”). An EA

is “a rough cut, low-budget environmental impact statement designed to show

whether a full-fledged environmental impact statement–which is very costly and

time-consuming to prepare and has been the kiss of death to many a federal

project–is necessary.” Sabine River, 951 F.2d at 677 (citing Cronin v. U.S. Dep’t.

of Agriculture, 919 F.2d 439, 443 (7th Cir. 1990)). An EA will result in a finding

that an EIS is necessary or in a FONSI, indicating that no further study of

environmental impacts is warranted. La. Crawfish Producers Ass’n-West v.

Rowan, 463 F.3d 352, 356 (5th Cir. 2006). 

1. Failure to Consider Alternatives

An EA must discuss alternatives to the planned action, but need not

discuss all proposed alternatives. See 40 C.F.R. § 1508.9(b) (assessment “[s]hall

include brief discussions of the need for the proposal, of alternatives . . . of the

environmental impacts of the proposed action and alternatives, and a listing of

agencies and persons consulted”); see also La. Crawfish Ass’n, 463 F.3d at 355

(NEPA “does not require that all proposed alternatives, no matter their merit,

be discussed in the EA.”). “[T]he range of alternatives that the [agency] must

consider decreases as the environmental impact of the proposed action becomes

less and less substantial.” Sierra Club, 38 F.3d at 803; see also Highway J

Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir. 2003) (“When . . . an

agency makes an informed decision that the environmental impact will be small
No. 08-10890

7

. . . a less extensive search [for alternatives] is required.”). The rejection of even

viable and reasonable alternatives, after an appropriate evaluation, is not

arbitrary and capricious. See Miss. River Basin Alliance v. Westphal, 230 F.3d

170, 177 (5th Cir. 2000).

 The EA in this case noted that “the area under consideration was

identified in a preliminary study by the Texas Water Plan as an area with the

potential for development as a reservoir . . . .” It also noted that the City was

considering a feasibility study of the reservoir. It analyzed the effects of three

different alternatives (no action, a larger refuge, and a smaller refuge) along

multiple lines such as climate and air quality, water resources, vegetation, land

use, and cultural resources. In each instance, the EA acknowledged and

attempted to analyze the effect the alternative would have on the reservoir

proposal. The EA also analyzed the cumulative impact of the refuge in

conjunction with other “past, present, and reasonably foreseeable future

actions,” including the reservoir.

Appellants argue that FWS was required to consider an alternative that

would allow the refuge and the reservoir to coexist. In the EA, however, FWS

noted that it was unable to evaluate fully any such dual proposal, since plans for

the reservoir were “speculative in the short-term, . . . not definitive in scope or

purpose, and . . . far beyond the planning horizon for the refuge proposal (i.e., 20

years).” Additionally, after several weeks of consultation between staff at FWS,

the City, and TWDB, a TWDB biologist admitted to the director of TWDB that

“an alternative site that is equal to or bigger and/or better than the North

Neches site has not yet been identified.” The director echoed this assessment in

a letter to FWS. Only after the closure of the public comment period and the

drafting of the FONSI did FWS receive a proposal for alternative refuge sites.

The alternatives included four other sites that Appellants claimed were of

greater environmental value, since there was more bottomland hardwood extant
No. 08-10890

8

at these sites. Each of these alternatives, however, envisioned building the

Fastrill Reservoir and the resulting inundation of the Upper Neches area, with

destruction of vegetation in that region. The record reveals no alternative that

allowed construction of the reservoir and served FWS’ goal of preserving the

bottomlands and wetlands of the Upper Neches. Under the circumstances, and

especially given that FWS concluded that the project had no significant

environmental impact, see Sierra Club, 38 F.3d at 803, this range of alternatives

was reasonable.

2. Failure to Consider Impacts

An EA must analyze both the direct and indirect effects of the proposed

action that are “reasonably foreseeable,” 42 U.S.C. § 4332(C)(ii); 40 C.F.R. §§

1502.16(a) & (b); 40 C.F.R. § 1508.7, which we have defined as effects that are

“sufficiently likely to occur that a person of ordinary prudence would take [them]

into account in reaching a decision.” City of Shoreacres v. Waterworth, 420 F.3d

440, 453 (5th Cir. 2005). “Reasonable foreseeability” does not include “highly

speculative harms” that “distort[ ] the decisionmaking process” by emphasizing

consequences beyond those of “greatest concern to the public and of greatest

relevance to the agency’s decision.” Robertson, 490 U.S. at 355-56 (internal

quotation marks and citations omitted). “[A] ‘but for’ causal relationship is

insufficient to make an agency responsible for a particular effect under NEPA

and the relevant regulations. Rather, a plaintiff mounting a NEPA challenge

must establish that an alleged effect will ensue as a ‘proximate cause,’ in the

sense meant by tort law, of the proposed agency action.” City of Shoreacres, 420

F.3d at 452.

Appellants argue that FWS was required to analyze the effect of

establishing the refuge on the City’s water supply and urban planning process,

given projected population growth. The cases cited by Appellants are inapposite,

however, since they concern the effect of federal actions on existing water
No. 08-10890

9

sources, not proposed water sources. See Sierra Club v. Marsh, 769 F.2d 868 (1st

Cir. 1985) (effect of port development runoff); City of Davis v. Coleman, 521 F.2d

661 (9th Cir. 1975) (effect of industrial development runoff); California v. Dep’t

of Transp., 260 F. Supp. 2d 969 (N.D. Cal. 2003) (effect of airport construction);

Simmans v. Grant, 370 F. Supp. 5 (S.D. Tex. 1974) (effect of eliminating water

source). Plaintiffs do not cite to any authority for the proposition that an agency

must account for the effects on a municipal water supply of precluding a

proposed but as-yet-nonexistent water source. 

Further, the effects of establishing the refuge, and thus precluding the

reservoir, are highly speculative and cannot be shown to be the proximate cause

of future water shortages in Dallas. The City and TWDB never committed to

constructing the reservoir and may never have done so, or may have constructed

a reservoir at another site. Besides including it in periodically updated planning

documents, the City and TWDB have never taken any concrete steps toward

constructing the reservoir, such as seeking permits, acquiring property, or

commencing any of the hydrological, fiscal, or environmental studies necessary

to a major public works project. In fact, the City and TWDB have never even

settled upon the exact position of the dam or footprint of the reservoir. Thus, the

City and TWDB have never identified the precise role the reservoir–even if

constructed and tapped in 2060–will play in supplying the region’s future water

needs. Further, the City argues that water shortages in the region will begin as

early as 2010, yet the reservoir would not be tapped earlier than 2060. Given the

uncertainty over whether the reservoir will be constructed and its impact on

water supplies, and the long time frame for the project, the effects of establishing

the refuge on water supplies are not concrete enough, nor closely enough related

to the federal action, to require that they be included in the EA.

3. Reliance on Old Data
No. 08-10890

 Lands Council also differs from the instant case in that it involved an EIS, which is 1

by design a more comprehensive document than an EA.

10

Appellants argue that FWS relied upon old data in its EA. Properly

analyzing the risks of an action requires an agency to use updated information

or data; reliance on out-of-date or incomplete information may render the

analysis of effects speculative and uncertain, warranting the preparation of an

EIS. See Klamath-Siskiyou Wildlands Ctr. v. U.S. Forest Service, 373 F. Supp.

2d 1069, 1081 (E.D. Cal. 2004). In this case much of the data in the EA was lifted

from the earlier EA prepared in 1988. The City and TWDB note that there has

been degradation of the site and that a significant portion of the Upper Neches

bottomland hardwoods have been cleared. However, the City and TWDB have

not shown that this information was so flawed that it precluded assessment of

reasonably foreseeable impacts. Nor is it clear how, in this case, additional

information as to environmental degradation of the Upper Neches would cause

FWS to conclude it should leave the site unprotected. In this sense, the instant

case differs from those cited by Appellants, where additional or updated

information was needed before a reasoned decision could be made as to whether

to intrude on a site. See, e.g., The Lands Council v. Powell, 395 F.3d 1019, 1031

(9th Cir. 2005) (additional information on animal habitat needed before timber

harvest could commence) ; Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1

1150 (9th Cir. 1998) (additional information on trout habitat needed before

logging could commence), overruled on different grounds, The Lands Council v.

McNair, 537 F.3d 981, 997 (9th Cir. 2008); Klamath-Siskiyou Wildlands Ctr.,

373 F. Supp. 2d at 1081 (additional information on owl population needed before

logging could commence).

Undoubtedly, were a plaintiff to show that a site had become so

degraded–for example, by substantial clearcutting of the bottomland hardwoods

such that it would not support migrating waterfowl even if protected–such a
No. 08-10890

11

showing may well render the decision to rely on older data arbitrary within the

meaning of NEPA. No such showing has been made in this instance. Here, the

use of older data in an EA–by definition a “rough cut, low-budget” assessment

of environmental impacts on the way to determining whether an EIS is

necessary, see Sabine River, 951 F.2d at 677–cannot be said to be unreasonable.

Nor does the use of this data in this instance support forcing the agency to

engage in a process likely, because of its lengthy timeline, to permit further

environmental degradation of the site before a decision is reached.

4. The FWS Decision Making Process

Finally, the City and TWDB also argue that the decision making process

FWS engaged in was a sham. Appellants point to several flaws: FWS’s choice of

a 20-year project horizon for analysis of impacts, its failure to coordinate with

local and state planning agencies in violation of CEQ regulations, and its failure

to publish a “final” EA. The record reveals that FWS engaged in an extensive

process of public education and public comment and even worked with officials

from the City and TWDB to identify an alternative site that would allow the

refuge and the reservoir to coexist. Emails between various FWS officials reveal

nothing more than an appropriate advocacy for a favored agency alternative. In

arguing that FWS was required to publish a “final” EA, Appellants cite only to

non-binding internal policy memos and not to any binding regulation or statute.

Appellants’ assertion that FWS abused its discretion by failing to “coordinate”

with the local, regional, and state water planning process falls short, since

neither NEPA nor any of the other statutes the City or TWDB cite require an

agency to insinuate itself into state planning processes in the manner suggested.

Finally, Appellants fail to show that FWS’s 20-year planning horizon was

arbitrary and capricious under the circumstances. As the district court noted,

“FWS must set some kind of time frame for its evaluations; it cannot have an
No. 08-10890

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interminable planning period.” City of Dallas, Tex. v. Hall, 2008 WL 2622809,

at *14 n.10 (N.D. Tex. June 30, 2008).

B. Requirement of an EIS

In arguing that an EIS was required, Appellants attempt to distinguish

this case from Sabine River. In that case, strikingly similar to the present one,

FWS set an acquisition boundary for a wildlife refuge on 3,800 acres in East

Texas, and accepted a negative, no-development easement from a landowner

inside the acquisition boundary. See Sabine River, 951 F.2d at 674-76. The

designation precluded the construction of a proposed reservoir. Id. at 673. The

reservoir was in the preliminary planning stage, and the state agency with

jurisdiction over it had “obtained none of the necessary federal and state

permits, had secured no funding, and had not yet entered into any firm contracts

for the 300 thousand plus acre feet of water that the reservoir would generate

each year.” Id. We concluded that “the acquisition of a negative easement which

by its terms prohibits any change in the status quo does not amount to ‘major

Federal action[ ] significantly affecting the quality of the human environment.’

. . . The acquisition of a negative easement which prohibits development does not

result in the requisite ‘change’ to the physical environment.” Id. at 679-80

(citations omitted). The acceptance of such an easement is “tantamount to

inaction,” and thus the acceptance “did not effectuate any change to the

environment which would otherwise trigger the need to prepare an EIS.” Id. at

680. In the instant case, the district court properly set forth the factors to

consider in applying Sabine River: whether the agency action (1) precludes any

development of the land, (2) changes the character or function of the land, and

(3) prohibits any change in the status quo of the land. City of Dallas, Tex., 2008

WL 2622809 at *5. 

The City argues that three independent authorities dictate that an EIS

was required in this instance: FWS’s own NEPA guidelines, the NEPA
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implementing regulations issued by the U.S. Department of the Interior (“DOI”),

and the NEPA implementing regulations issued by the Council on

Environmental Quality (“CEQ”). The FWS guidelines include a number of

criteria to assist the agency in determining whether an EIS is needed. Among

these are “increased safety or health hazards,” 550 FW 3.3(B)(2)(e), and

“[a]dverse effects on municipal, industrial, or agricultural water supply or

quality . . . ,” id. at 3.3(B)(2)(i). The City points to these guidelines and argues

that an EIS is required to weigh adequately the health and water supply effects

of not building the reservoir. But these guidelines have no binding force. See

Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 229 (5th Cir. 2005)

(“Generally, to be legally binding on an agency, its own publications must have

been ‘promulgated pursuant to a specific statutory grant of authority and in

conformance with the procedural requirements imposed by Congress.’”) (citation

omitted). When agency publications have not been promulgated pursuant to a

specific grant of statutory authority, an agency’s decision to analyze impacts by

other methods is not automatically arbitrary and capricious. Id. at 230. These

guidelines were not promulgated pursuant to law. Further, by their own terms,

they are meant to assist in determining whether an EIS is necessary, not dictate

when an EIS is necessary, and carefully note that whether any of the criteria

triggers the need for an EIS depends in each instance on “the severity and

duration of effects.” FW550 3.3(B)(2). 

The DOI regulations the City points to are binding on the agency, but they

do not mandate the preparation of an EIS in this case. In the regulations, among

the “Major Actions Normally Requiring an EIS” are “major new refuge system

units . . . which involve substantive conflicts over existing State and local land

use [or] significant controversy over the environmental effects of the proposal.”

62 Fed. Reg. 2375, 2382. The City argues that the refuge meets both these

criteria. But by their own terms, the regulations “normally” require preparation
No. 08-10890

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of an EIS but do not dictate preparation in each case. Further, the regulations

clearly envision that when, pursuant to an EA, the agency determines that an

action will have no major environmental impacts, an EIS is not required even

when the action otherwise meets the criteria. Id. In this case, after preparing an

EA the agency made a reasoned decision that there were no significant

environmental effects. 

More importantly, by their own terms the regulations only envision

preparation of an EIS when there is a conflict with “existing” State and local

land use or where there is “significant” controversy over environmental effects.

In this case, while a feasibility study has been completed, the City and TWDB

have taken no concrete steps to develop the reservoir (such as applying for

permits), much less put any land to use. The development of an acquisition

boundary does not conflict with existing State and local use, but merely with a

potential future use. Further, the City and TWDB have been unable to show

with any specificity the effects of setting the acquisition boundary. A controversy

such as this one–over the highly speculative, uncertain effects of not building a

particular reservoir–cannot be “significant” within the meaning of both the

regulations and NEPA.

Similarly, while the CEQ regulations that the City points to are binding

on federal agencies, see Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.

1985), they do not mandate the preparation of an EIS in this case. The

regulations merely require an agency to determine whether an action is one that

normally requires an EIS. See 40 C.F.R. § 1501.4(a). If the agency determines

that the action does not normally require an EIS, it then prepares an EA and

makes a finding as to whether the proposed action has significant environmental

impacts. Id. at 1501.4(b). In this case, as described above, FWS properly

prepared an EA and made a FONSI, as envisioned by the CEQ regulations. 
No. 08-10890

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TWDB also argues that the instant case is distinguishable from Sabine

River because the refuge designation in this case will cause changes in the

physical environment. As noted in the EA, FWS envisions removing non-native

tree species in the refuge and reintroducing native hardwood and evergreen

species. TWDB argues that this distinguishes the case from Sabine River, where

there was no evidence that the refuge site would be changed in any way by the

acceptance of an easement. See Sabine River Auth. v. U.S. Dep’t of the Interior,

745 F. Supp. 388, 394 (E.D. Tex. 1990). However, as the district court noted in

its order denying Appellants’ motion for partial summary judgment, the action

at issue here is the establishment of an acquisition boundary for the refuge. The

establishment of that boundary does not effect any change in the physical

environment, but merely authorizes the purchase of property from willing

buyers or the acceptance of conservation easements. Once sufficient land is

acquired, FWS will be required to comply with NEPA in formulating a

Comprehensive Conservation Plan to guide refuge forest management. If

changes in the physical environment are proposed in that plan, an EIS may be

required. But the present federal action will have no significant physical effects

such that an EIS is required.

As in Sabine River, where the acceptance of a negative, non-development

easement was “tantamount to inaction,” Sabine River, 951 F.2d at 680, setting

an acquisition boundary for the refuge does not effect a change in the use or

character of land or in the physical environment. Thus, it is not a “major Federal

action[] significantly affecting the quality of the human environment,” 42 U.S.C.

§ 4332(2), and no EIS is necessary under the requirements of NEPA.

C. Tenth Amendment Claims

Finally, Appellants argue that the establishment of the refuge is

unconstitutional because it impermissibly intrudes on state sovereignty and
No. 08-10890

 U.S. CONST. art. 4, § 3, cl. 2.

2

 U.S. CONST. art. 1, § 8, cl. 18. 3

16

violates the Property and Necessary and Proper Clauses. Before ruling we 2 3

must determine precisely what, if any, issues are properly before us. In its

amended complaint, the City alleged that there was not a sufficient nexus

between the agency’s action and interstate commerce, and that FWS violated the

City’s Tenth Amendment right to secure sufficient water supplies for future

residents. In its brief before the district court, however, the City conceded that

it could not challenge the constitutionality of the statutes allowing for

acquisition of property. The City’s brief also did not argue a constitutional right

to secure water supplies, which the district court nonetheless characterized as

“a spurious argument without legal basis.” City of Dallas, Tex. v. Hall, 2007 WL

3125311, at *11 (N.D. Tex. October 24, 2007). Rather, the City asserted that

FWS exceeded its authority under the Tenth Amendment when it established

the acquisition boundary and accepted the conservation easement, because it did

so for the purpose of commandeering the state’s water planning process and

thwarting the reservoir. Because these were not the allegations pleaded in the

amended complaint, the district court declined to consider them on the motion

to dismiss for failure to state a claim. The allegations in the amended complaint,

not having been appealed, are waived.

In its brief before this court, the City revises its constitutional argument.

In this iteration, the City argues that FWS, by establishing the refuge, has

unconstitutionally invaded a traditional area of state sovereignty–water and

land use planning–without clear authorization from Congress. Additionally, it

argues that establishing the refuge violates the Tenth Amendment by running

afoul of the Property and Necessary and Proper Clauses. These arguments bear

only a passing resemblance to the City’s arguments on the motion to dismiss,
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17

and none at all to its arguments in the amended complaint. Accordingly, these

arguments are not properly presented and we decline to consider them. See

Singleton v. Wuff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that

a federal appellate court does not consider an issue not passed upon below.”);

Fed. Deposit Ins. Corp. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“[I]f a

litigant desires to preserve an argument for appeal, the litigant must press and

not merely intimate the argument during the proceedings before the district

court. If an argument is not raised to such a degree that the district court has an

opportunity to rule on it, we will not address it on appeal.”).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decisions of the district court.